Marande v. Texas & P. Ry. Co.

• Decision Date: 24 May 1900
• Docket Number: 149.
• Citation: Marande v. Texas & P. Ry. Co., 102 F. 246 (2nd Cir. 1900)
• Court: U.S. Court of Appeals — Second Circuit
• Parties: MARANDE et al. v. TEXAS & P. RY. CO.

102 F. 246

MARANDE et al. v. TEXAS & P. RY. CO.

No. 149.

United States Court of Appeals, Second Circuit.

May 24, 1900

Treadwell Cleveland, for plaintiffs in error.

Rush Taggart, for defendant in error.

Before WALLACE and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

The plaintiffs brought this action to recover the value of 65 bales of cotton, their property, which was destroyed by fire while in the cars of the defendant, a railway carrier, which pursuant to the terms of a bill of lading, had undertaken to transport the cotton from Greenville, Tex., to the port of New Orleans, and deliver it there to a steamship carrier for transportation to Havre.By the bill of lading the defendant was not to be liable for any loss by fire, nor in any other respect than as a warehouseman, while the property was awaiting further conveyance by steamship carrier.The cotton had arrived at West Wego, the terminus of a branch of the defendant's line of railway on the west bank of the Mississippi river opposite the city of New Orleans, where the defendant had a wharf, and customarily delivered cotton for export to the steamship carrier, but had not been unladen owing to the accumulation of cotton upon the wharf when the fire occurred.There were two covered sheds upon the wharf distant from one another about 100 feet, each shed being about 250 to 300 feet long and of about the same width, and these sheds and a considerable part of the intervening space were filled with cotton in bales.The fire occurred November 12, 1894, about 6:30 p.m.It originated near the center of shed No. 2, and was discovered immediately, but spread so rapidly that all efforts to extinguish it were unavailing; and not only the cotton upon the wharf, but also that in the cars in the vicinity of the wharf, was consumed.

Upon the trial the plaintiffs sought to recover upon the theory that West Wego was not a part of the port of New Orleans and, because of a deviation by the carrier in taking the cotton there, contended that the exemptions of liability contained in the bill of lading did not relieve the defendant.The plaintiffs also sought to recover upon the theory that their loss was caused by the negligence of the defendant; and offered evidence in support of two issues: (1) That the cotton was exposed to danger of fire from incendiaries, and from a locomotive which during the forenoon had been on the tracks of the wharf; and (2) that the fire could have been extinguished before their cotton was burned if the defendant had provided proper appliances and exercised reasonable diligence.The trial judge directed a verdict for the defendant, and refused to submit the question of the negligence of the defendant to the jury.Error is assigned of this ruling.

We had occasion to consider the first ground of recovery in Reiss v. Railway Co. (C.C.A.)98 F. 533,-- an action similar to this, and growing out of the same fire,-- and, for the reasons stated in the opinion in that case, do not regard it as tenable.The supplementary evidence does not change the facts or distinguish them in any material particular from those in the Reiss Case.

As to the second ground of recovery, the case as to the first issue hardly merits discussion.That there were evil-disposed persons in the vicinity who might have set fire to the cotton, and that the defendant, by keeping a larger force of watchmen at its wharf, might have more efficiently protected its property from risk, are facts that may be assumed to be proved by the evidence.But these facts did not prove, or tend...